Whether court can refuse to permit party to examine second attesting witness to will?

In my considered view,  application should have been allowed 
by the trial Court.  After all, if both the attesting witnesses to the Will are 
available and examined, it would facilitate the trial Court to resolve the 
dispute in general and decide upon the validity of Will appropriately and 
effectively  if remaining attesting witness, who is available, also is allowed 
to   be   examined.     Needless   to   say,     respondent   (defendant)     would   get 
opportunity to cross­examine him.  Hence, the impugned order will have to 
be set aside. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
Writ Petition No. 1225 of 2014

NAGPUR BENCH : NAGPUR
 Shamsundersingh Lalsingh Thakur, 
versus
Bhalchandra Prabhakar Wadai
Coram :  A. P
.  Bhangale, J
Dated  :  7th July 2014
Citation; 2014(5) MHLJ55

1. Rule.  Heard forthwith by consent of parties. 
2. Petitioners   (plaintiffs)   made   application   (exhibit   132)   for 
permission   to  examine   Krishna   Bhonde   who  is   attesting   witness  to  Will 
dated 15.3.1980 produced by defendant.  Defendant on 13.2.2014 kept in 
attendance both the attesting witnesses.  However, he examined only one 
out of two   attesting  witnesses viz. Rambhau Bagde and gave up other 
attesting witness viz. Krishna Bhonde.  
3.
Learned trial Court rejected the said application on the ground 
that the matter is old and the suit is already fixed for final arguments. 
4.
Learned  counsel  for  petitioners  contended that no prejudice 

would be caused to the respondent if remaining attesting witness to the 
Will   is   examined   and   petitioners   are   ready   to   bear   the   expenses   for 
5.
summoning that witness. 
Learned   counsel   for   respondent   (defendant)   supported   the 
impugned order.   He contended that such application was not tenable at 
the final argument stage. 
In my considered view,  application should have been allowed 
6.

by the trial Court.  After all, if both the attesting witnesses to the Will are 
available and examined, it would facilitate the trial Court to resolve the 
dispute in general and decide upon the validity of Will appropriately and 
effectively  if remaining attesting witness, who is available, also is allowed 
to   be   examined.     Needless   to   say,     respondent   (defendant)     would   get 
opportunity to cross­examine him.  Hence, the impugned order will have to 
be set aside. 
7.
In   the   result,   impugned   order   is   quashed   and   set   aside. 
Application of petitioners (plaintiffs) is allowed. Learned trial Judge shall 
summon Krushna  Bhonde  as  plaintiffs’ witness  or  court witness, if  it so 
deems   fit,     at   the   costs   of   plaintiffs   and   grant   due   opportunity   to   the 
defendant to cross­examine him. Rule is made absolute in these terms with 
no order as to costs. 
A. P
.  BHANGALE, J

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